P. v. Tweedy

 

 

 

 

 

 

 

 

Filed 11/25/13  P. v. Tweedy CA2/1

 

 

 

 

 

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

> 

California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b).  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
ONE

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   FERONE LAWRENCE TWEEDY,               Defendant and Appellant.

B248826         (Los Angeles County       Super. Ct. No. YA033017)

 

 

            APPEAL from
a judgment of the Superior court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  William C. Ryan, Judge.  Affirmed.

            Dee Hayashi,
under appointment by the Court of Appeal, for Defendant and Appellant.

            No
appearance for Plaintiff and Respondent.

____________________________

 

 

 

 

 

            On or about May 27, 1997, Ferone Lawrence Tweedy robbed a 7-Eleven at
knifepoint after a dispute with the cashier over the correct change.  On June 26,
1997,
Tweedy was charged with one count of felony robbery under Penal Code section
211.href="#_ftn1" name="_ftnref1" title="">[1]  After a
trial, the jury found Tweedy guilty of second
degree robbery, and found true the special allegation that he used a
weapon.  (§§ 211; 12022, subd.
(b)(1).)  On May
5, 1998, he was sentenced under the “Three Strikes” law to 26 years to
life.  Tweedy had two prior strikes from
convictions for assault and robbery in 1983.  


            On April
3, 2013, Tweedy filed a petition to recall his sentence under Penal Code section
1170.126, also known as the Three Strikes Reform Act of 2012.  Under the Three Strikes Reform Act, “prisoners
currently serving sentences of 25 years to life for a third felony conviction
which was not a serious or violent felony may seek court review of their
indeterminate sentences and, under certain circumstances, obtain resentencing
as if they had only one prior serious or violent felony conviction.”  (People
v. Superior Court (2013) 215 Cal.App.4th 1279, 1286.)  The court has discretion to deny resentencing
if the inmate would pose an unreasonable risk of danger to public safety.  (§ 1170.126, subd. (f).)  An inmate is not eligible for resentencing if
the inmate’s third strike was a violent felony under section 667.5.  (§ 1170.126, subd. (e)(1).)  The trial court denied Tweedy’s petition to
recall his sentence because Tweedy’s current offense of second degree robbery
is a violent felony.  (§ 667.5, subd.
(c)(9).) 

            Defendant
filed a timely appeal and we appointed counsel
to represent him.  The issue of the appealability
of an order denying a petition for recall of a sentence under section 1170.126
is currently under review by the California Supreme Court.  (See Teal
v. Superior Court (2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211708; People
v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017.)  We
previously found that an order denying a petition for recall of a sentence was
appealable.  (People v. Hurtado, supra, 216 Cal.App.4th 941.)  Until directed otherwise by the Supreme Court,
we will continue to treat it as such.

            After
examination of the record, appointed counsel filed an opening brief raising no
issues and asking this court to independently review the record.  (People v. Wende (1979) 25 Cal.3d 436,
441–442.)  On
September
4, 2013, we sent letters
to defendant and appointed counsel directing counsel to immediately forward the
appellate record to defendant and advising defendant that he had 30 days in
which to personally submit any contentions or issues he wished us to consider.  To date, defendant has not responded.

            We
have examined the record and are satisfied that Tweedy’s counsel has complied
with her responsibilities and that no arguable issues exist.  (People v. Kelly (2006) 40 Cal.4th
106, 109–110; People v. Wende, supra, 25 Cal.3d at p. 441.)  Tweedy’s commitment offense constitutes a
violent felony.  Therefore, he was
ineligible for resentencing under section 1170.126.  Accordingly, the trial court properly denied
his petition to recall his sentence.

DISPOSITION

The judgment is affirmed.

            NOT TO BE PUBLISHED.

 

 

                                                                                                            CHANEY,
J.

 

We concur:

 

 

                        ROTHSCHILD,
J. Acting P. J.

 

 

                        JOHNSON,
J.